Attorney disputes USCIS denial of H-1B transfer

NEW YORK: Thomas Williams, an attorney in the Washington DC area, alleges that the US Immigration Service has misconstrued the law governing the employment of professionally qualified foreign H-1B workers, which has resulted in large-scale denial of thousands of petitions filed by American companies on behalf of their critically needed employees.

According to attorney Williams, the Immigration Service has erroneously taken the position that any break or discontinuity in the continued employment of the H-1B worker results in worker’s loss of status and, therefore, renders any subsequent petition on his/her behalf for extension or transfer unapprovable.

Williams, with over 20 years of practice in immigration matters, contends that the ruling is “legally untenable and contrary to Federal Regulations”.

According to him, the Federal Regulations list only three specific circumstances under which a person’s H-1B status is automatically terminated or revoked: 1) When the employer goes out of business; 2) When the employer files a written withdrawal of the petition; 3) Or when the underlying Labor Condition Application (LCA) is revoked.

Williams explains that in the absence of the above conditions, in order for a worker to lose lawful status, the Immigration Service must send out a termination Notice which grants a 30-day period for response before the termination can take effect.

“Unless the 30-day Notice is sent out, and until all administrative procedures are strictly followed by the Immigration Service,” argues Williams, “the worker is considered to be in status and eligible for extension or transfer.”

He advises that “even in the previously denied cases, petitioners might consider filing a Motion to Reopen and Reconsider in an attempt to address the erroneous ‘out-of-status’ presumption by the Immigration Service and its compliance with its own procedures”. Williams argues that the new Motion, even if denied, would give rise to basis for administrative Appeal which would in effect extend the worker’s lawful status.

“Furthermore, favorable outcome of Motion or Appeal could also affect favorably worker’s right to Adjustment of Status within the US,” he says.